Under Part XVIII, Article 359 of Indian Constitution is a pivotal provision that empowers the President to suspend the enforcement of certain fundamental rights during a National Emergency . The mechanism ensures that the state can take necessary actions to maintain national security and integrity without being hindered by legal challenges .

Article 359 of Constitution of India plays a crucial role in the emergency provisions of the Indian Constitution . It allows the President to suspend the right to move any court for the enforcement of specific fundamental rights during a proclaimed emergency. This suspension is not automatic and requires a formal order by the President. Unlike Article 358 which deals exclusively with the suspension of Article 19 rights, Article 359 extends to other fundamental rights except Articles 20 and 21 . The provision ensures that during times of national crisis, the government has the necessary authority to act decisively, while also embedding safeguards to prevent misuse . Understanding Art 359 is essential for comprehending how India balances individual freedoms with the need for national security during emergencies. Explore in-depth analysis of other Constitutional Articles.

Article 359 of Indian Constitution

Suspension of the enforcement of the rights conferred by Part III during emergencies.

(1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III (except Articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. 

(1A) While an order made under clause (1) mentioning any of the rights conferred by Part III (except Articles 20 and 21) is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect:

Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation.

(1B) Nothing in clause (1A) shall apply—

(a) to any law which does not contain a recital to the effect that such law is in relation to the Proclamation of Emergency in operation when it is made; or

(b) to any executive action taken otherwise than under a law containing such a recital.

(2) An order made as aforesaid may extend to the whole or any part of the territory of India: 

Provided that where a Proclamation of Emergency is in operation only in a part of the territory of India, any such order shall not extend to any other part of the territory of India unless the President, being satisfied that the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation, considers such extension to be necessary.

(3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament.

Note: "The information provided above has been sourced from the official website, i.e., Indian Code. While the content has been presented here for reference, no modifications have been made to the original laws and orders" 

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Under the Indian Constitution Article 359 empowers the President to suspend the right to approach courts for the enforcement of specific fundamental rights during a National Emergency. This suspension is not automatic and requires a formal Presidential order. Importantly, Articles 20 and 21, which guarantee protection in respect of conviction for offenses and the right to life and personal liberty, respectively, cannot be suspended under this provision. 

The suspension under Art 359 applies only to the rights specified in the Presidential order and can be enforced for the entire duration of the emergency or a shorter period as mentioned in the order. Additionally, any law enacted or executive action taken under this provision must explicitly state its connection to the emergency . Once the emergency ceases such laws or actions lose their effect except for actions already taken . 

The provision ensures that during times of national crisis the government has the necessary authority to act decisively while also embedding safeguards to prevent misuse . The distinction between Article 358 and Article 359 of Constitution of India lies in their scope and application. While Article 358 deals exclusively with the suspension of Article 19 rights and operates automatically during an emergency, Art 359 requires a formal order and applies to other fundamental rights, excluding Articles 20 and 21.

Article 359 of Indian Constitution: Landmark Cases 

These judgments have clarified the scope, application and significance of Article 359 of the Indian Constitution in the legal structure of India . Some of the most important and influential cases include :

• ADM Jabalpur v. Shivkant Shukla (1976) This case, also known as the Habeas Corpus case, questioned whether citizens could approach courts for enforcement of fundamental rights during an emergency. The Supreme Court held that during an emergency, the right to move any court for enforcement of rights under Article 21 is suspended. This judgment faced significant criticism and was later overruled.
• Ghulam Sarwar v. Union of India (1966) The Supreme Court examined the scope of Presidential orders under Art 359 and held that such orders could not be challenged on the grounds of violating Article 14, as the enforcement of rights was suspended during the emergency.
• Makhan Singh v. State of Punjab (1964) The Court distinguished between Article 358 and Article 359, emphasizing that while Article 358 suspends Article 19 rights during emergencies, other rights remain enforceable unless specifically suspended under Article 359.
• S.P. Mittal v. Union of India (1983) The Supreme Court observed that Article 21 covers the right to life and personal liberty against its illegal deprivation by the State and in case of suspension of Article 21 by Emergency under Article 359, the Court cannot question the authority or legality of such State’s decision.

Article 359 of Constitution of India serves as a vital tool for the state to maintain sovereignty and integrity during times of war or external aggression . By allowing the suspension of the right to move courts for enforcement of certain fundamental rights it enables the government to act decisively without constitutional constraints that might hinder swift action.

However, the provision also incorporates checks to prevent misuse . The requirement for a formal Presidential order and the explicit exclusion of Articles 20 and 21 ensure that the suspension of rights is both purposeful and temporary .

The distinction between Article 358 and Article 359 of Indian Constitution further underscores the Constitution's commitment to balancing state power with individual rights . While Article 358 deals specifically with Article 19, Article 359 provides a broader mechanism for suspending other rights but only through a presidential order .

In essence Article 359 exemplifies the Constitution's foresight in addressing national emergencies while embedding safeguards to restore democratic norms once the crisis subsides .

Article 359 of Indian Constitution: Developments and Amendments 

The 44th Amendment Act of 1978 brought significant changes to Article 359 of Indian Constitution. Prior to this amendment, the President could suspend the right to move any court for enforcement of all fundamental rights during any type of emergency. The amendment restricted this suspension solely to emergencies declared due to war or external aggression, excluding internal disturbances or armed rebellion .

Additionally, the amendment introduced a crucial safeguard by explicitly excluding Articles 20 and 21 from the purview of suspension under Article 359 . This means that even during an emergency, the rights to protection in respect of conviction for offenses and the right to life and personal liberty cannot be suspended .

These amendments were a direct response to the misuse of emergency provisions during the 1975-77 Emergency period . The changes aimed to prevent arbitrary suspension of fundamental rights and ensure that such drastic measures are reserved for genuine external threats .

These amendments reflect the Constitution's adaptability and commitment to protecting individual rights even while granting the state necessary powers during crises.

Conclusion

Article 359 of Indian Constitution reflects the balance that the framers intended between national security and fundamental rights. It empowers the President to suspend the right to move the courts for enforcement of specific fundamental rights during a National Emergency. However, the safeguards built into the provision, especially after the 44th Amendment, ensure that Articles 20 and 21 remain protected even during emergencies.

Unlike Article 358, which deals only with the suspension of Article 19 rights automatically during emergencies caused by war or external aggression, Article 359 operates through a formal Presidential order and can target a broader range of fundamental rights. Still, it requires clear specification of the rights being suspended .

The evolution of Article 359 particularly the restriction introduced by the article 359 amendment shows constitutional maturity of India and its commitment to democracy even during crises . It prevents blanket misuse and ensures that the state's extraordinary powers are used responsibly.

In conclusion, Article 359 of Constitution of India remains a critical provision for safeguarding national security, but it simultaneously upholds the spirit of human rights and constitutionalism. Understanding art 359 is key to appreciating the delicate framework the Indian Constitution has built to protect both the nation and its citizens.